State Consumer Disputes Redressal Commission
Viney Sagar Sahgal vs Skoda India Pvt. Ltd. on 1 November, 2012
IN THE STATE COMMISSION : DELHI Date of Decision: 1.11.2012 Complaint No. 116/2008 1. 2. Sh. Viney Sagar Sahgal (V.S. Sahgal) Office: 232, DDA Commercial Complex, Jhandewalan, New Delhi-55 Residence At: D-125, Sector-40, NOIDA Quality Needles Pvt. Ltd. Regitered Office at : 232, DDA Commercial Complex, Jhandewalan, New Delhi-55 Also At: A-8, Sector-57, NOIDA ..Complainants vs 1. 2. Skoda India Pvt. Ltd., Registered Office at: Plot No.A-11, Shendra, Five Star Industrial Area, MIDC, Aurangabad-431 201 Continental Auto Services (Auth. Skoda Dealer) A-13, Mohan Co-OP. Ind. Estate, Mathura Road, Opp. Sarita Vihar, New Delhi-110 044 -----Opposite Parties CORAM Salma Noor, Member
V.K.Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER(JUDICIAL)
1. This is a complaint u/s 17 of the Consumer Protection Act, 1986.
2. In nutshell, the facts are that the complainant purchased a car Skoda Superb having registration No. DL-6C-J 4579 for Rs.22,98,375/- on 6th April, 2005 from OP No.2. Since the purchase, the car has been given trouble on one account or the other and has never given the satisfaction of own expensive car. The car visited the authorized workshop of OP-2 for rectifying defects/problems for almost 33 times ever since it was purchased on 6.4.2005. The some incidents and expenses incurred by the complainant are as under:-
Air Conditioning Problem (Oct. 2006)
i) While the car had done only about 17.411 Kms., the Air Conditioner Evaporator of the car had to be replaced on 7.10.2006.
total amount charged by OP-2 and paid Rs.31976/-.
Transmission Lever Handle Stuck (Oct. 2006)
ii) Only two days of above said repair, the transmission selector lever handle/gear lever started sticking while shifting the gear lever to and from `Park position. The handle was replaced, and a total amount charged by OP-2 and paid Rs.12,739/-
Car Engine Stalled (Oct. 2006)
iii) That at around 18,547/- kms, during the night when Mr. V.S. Sehgal, C-1, was going out, the car engine stalled on the Greater Noida Express Way, however, C-1 with great difficulty reached his residence at Noida. The car was sent to OP-2 Car Engine Stalled again (Oct. 2006)
iv) However, upon cleaning the car engine injectors by OP-2 on 13.10.2006, the problem did not get resolved. The car was once again sent back to OP-2 since the problem of stalling of the car engine had still not been resolved;
Car Engine Stalled once again (Oct. 2006)
v) At 18,868 Kms, the car engine started to stall again and once again the car had to be sent back to OP-2. After having cleaned the fuel line by OP-2, the problem of engine stalling did not to away;
CV joint and Axle problem (Nov., 2006)
vi) At 20,338 Kms., a noise in the CV joint started. The car had to be sent to OP-2 for repairs, and the CV joint as well as the axle boot were replaced on 30.11.2006. Total amount charged by OP-2 and paid Rs.21,080/-.
Car Engine Stalled again (May 2007)
vii) That subsequently, the problem of stalling did not go away and once again on May, 16, 2007 the car was sent back for repair but even after replacing of the fuel pump by OP-2, the problem of stalling continued Power Window Mechanism Failure (May 2007)
viii) Thereafter, a new problem arose, that is the power window mechanism of right rear window stopped functioning. Moreover, the required spare part was not available with OP-2 and the repair was thus delayed;
Problem of Car Engine stalling Continued (May 2007)
ix) That over the next couple of months the problems of engine stalling and misfiring continued. The car engine would continue to stall after running for every 20-30 Kms. It is pertinent to state that the dealer/OP-2 could not give a permanent solution and despite numerous attempts could not rectify the problem of engine stalling
x) That C-1 wrote several emails to OP-1/its officials on several occasions to report continuous problems/defects with the said car but OP-1 failed to provide a permanent solution to the continuous and recurring problem/defect in the said car;
Engine required to be opened (May-June 2007)
xi) That vide email dated 30.5.2007, Mr. Sudhir Srinivas of OP-1, informed that the service engineer from Skoda Auto Factory is in Delhi who will look into the matter. To the surprise of complainants they were informed that the factory service engineer has decided to open the engine head of the car, when the car had only done less than 30,000 kms., and that this would require the head gasket to be replaced. Complainants were mystified as to how the head gasket of such a new engine would require replacement, as email dated 31.5.2007 was written to Mr. Sudhir Srinivas with copy to OP-2 Car Engine decarburization/requires change of head Gasket (June-July 2007)
xii) That one Mr. Surbhi, from Skoda Auto (C-1) had examined the car and stated that now the cylinder head of the car would have to be opened for cleaning and decarbonising etc. and also stated that the head gasket would not be available for at least seven days. The car had hardly done about 25,000-27000 kms. and it is clear that there is a manufacturing defect with the said car. An email dated 1.6.2007 was also written to Mr. Sudhir Srinivas (of OP-1) with copy to OP-2 Inherent manufacturing defect right from the beginning
xiii) It is pertinent to state that OP-2 was also informed at the very initial stage of the purchase of the car, that the said car had been consuming a lot of engine/lube oil. It is apparent that the car had inherent manufacturing defects which come to the fore more clearly after the car had done about 20.000 kms. or so. Vide email dated 7.6.2007, Mr. Sudhir Srinivas, of OP-1, wrote that the head gasket had been received and would be sent to OP-2.
Engine Pistons and Head Gasket changed (July 2007)
xiv) It may be mentioned that subsequently complainants learnt that the car engine pistons and head gasket had also been replaced in the month of July, 2007, though not charged for. All along for these many days the car remained with OP-2 and thus complainants were deprived the use of the car;
xv) Since no specific reply was given by the OPs, complainants wrote emails, also requesting Skoda Auto, in view of the manufacturing defects, to replace the car;
Anti lock breaking system (ABS) lights/warning lights problem (Aug., 2007) xvi) That in Aug., 2007 the car started giving problem of ABS and FBD warning lights coming on while driving and an email dated 4.8.2007 was written to Mr. Nitin Dixit. Even after re-setting of the on board computer of the car by OP-2 in an attempt to rectify the said warning lights problem, the said defect did not go away;
Car Engine stalled again & Warning Lights problem continued (Aug. 2007) xvii) On or about 17.8.2007, the car again stalled and became non-operational. The warning lights also continued to come on after every few minutes. An email dated 22.8.2007 was written to Mr. Dixit in this regard. Mr. Sudhir Srinivas, Customer Care (After Sales) of OP-1, intimated vide email dated 6.9.2007, that their technical engineer would visit Delhi. The car was once again sent to OP-2 Car engine stalled once again/also engine missing & warning lights problem continued (Sept., 2007) xviii) On 7.9.2007, the car started to stall once again. An email to this effect was sent once again by complainants, explaining that the problem of missing,stalling and warning lights still continued, and further, the pick up of the car had also reduced;
Warning lights of airbag failure indication & Electrical controls of driver seat stopped working car meant for European conditions only (Jan., 2008) xix) On 23.1.2008, the car started to show a dashboard warning light indicating the failure of airbag (SRS warning) and also the electrical controls of the driver seat had stopped working. When Mr. Sandeep, son of Mr. V.S. Sahgal (C-1), spoke with the engineer of OP-1, he was told by the said official that how do you expect a car which is meant for European conditions to work in this country.
xx) Mr. Ramesh Karthik from Business Development Department of OP-1 acknowledged in an internal e-mail to Mr. Sudhir Srinivas (of OP-1) that the car has been coming for repeated recurring problems, vide email dated 25.1.2008, a copy of which was enclosed to complainants;
Earlier problem of gear liver recurred (Feb., 2008) xxi) The car again started to give the problem of gear lever getting stuck and not returning to park position and rendering the car non-functional. This lever was already replaced in Oct., 2006. Once again the car was sent to OP-2 who again replaced this and charged an amount of Rs.12,665/- on 5.2.2008, which was also paid;
Brakes of the car non-functional & courtesy lights in car interior non-operational (March 2008) xxii) In the middle of March, 2008, after the car returned from service, the brakes of the car were found to be barely functional rendering the car dangerous to ply on road. Further, the courtesy lights in the car interior were also non-operational. The car was sent back on 31.3.2008 for repair of brakes etc. The brakes were stated to have been rectified on 4.4.2008 and a bill of Rs.11,419/- was paid to OP-2. It was held up due to non availability of spares and was finally delivered only on 4.4.2008 Brake Failure while driving (April 2008) xxiii) On 5.4.2008 while Mr. Sahgal (C-1) was driving the car in question on the DND Flyway, the brakes of the car suddenly failed and he narrowly averted an accident. The car was again sent to OP-2 on 8.4.2008 for repairs for the same problem, namely brake failure. However, an amount of Rs.31,136/- was billed vide bill dated 16.4.2008;
Old problem of car stalling/missing & over heating once again recurred (April 2008) xxiv) That while a trial test run of the car was done on 16.4.2008 by OP-2, they informed the complainants that the engine of the car had again started to over heat and the old problem of engine missing and stalling had recurred Car Engine Losing Power & stalled once again (April 2008) xxv) Though the car was returned once again to the complainants on 18.4.2008 after remaining with OP-2 for two days and despite having been presented with a hefty bill for the repairs, the engine once again started losing power and stalled after it had hardly traveled ten kms. or so. The courtesy light of the car was also not functioning.
Electric Moudle required to be changed; Engine still overheating; Courtesy lights not functioning and Front seat controls inoperative (April, 2008) xxvi) The car was sent back to complainants but this time OP-2 informed that now an electronic module will have to be replaced for which an estimated amount of Rs.25,000/- would have to be spent. However the defects of engine stalling and misfiring, engine overheating, courtsy light not functioning and passenger side front seat controls inoperative continued to occur and remained unsolved by the OPs.
3. Since its purchase it almost remained non functional for all the above said period and it had hardly covered 16,000 Kms.
Current mileage of the car is 33,000 kms. The defects mentioned here in above have not been rectified inspect of the fact that many mails have been sent to the OP. The complainant claims the refund of Rs.22,98,375/-, Rs.1,75,274/- towards the expenses incurred for repair, Rs.15 lakh as compensation for mental agony, harassment and sheer suffering, Rs.1,00,000/- punitive damages and Rs.66,000/- as litigation charges. In all Rs.85,29,649/-.
4. OP No.1 has filed the separate written statement and denied the entire allegations. It is admitted that the car in question was purchased in the name of M/s Quality Needles Pvt. Ltd. and the complaint has been filed after two years of the purchase of the vehicle, which is out of the warranty. It has covered more than 33,000 kms successfully. Since the car is in the name of the company and it is used for the commercial purposes, therefore the Consumer Fora has no jurisdiction to entertain the complaint and the complainant is not a consumer. The vehicle was reported to OP No.2 on 6.10.2006 and he has replaced the A.C. Evaporator and again on 13.10.2008 the vehicle was reported to OP-2 and Selector level handle of gear transmission was replaced in the month of October 2006 the defects pointed out by the complainant was removed by OP-2. On 30.11.2006, the vehicle was taken to the service station of OP-2 and the defects were removed. The other defects, as mentioned by the complainant in para 3(vii) were also removed. The other problems as mentioned in para 3(viii) were also rectified to the satisfaction of the complainant. So far as defects, as referred in para 3(ix) of the complaint, it was properly rectified. Similarly the defects in para No. 3(ix), 13,14,15,16,17,18,19,20,21,22,23,24 & 26 were also rectified to the satisfaction of the complainant. There is no manufacturing defect; therefore, the complainant is not entitled to claim any relief.
5. OP No.2 has also filed the separate reply and denied the allegations. It also contended that the car was purchased on 6.4.2005 in the name of M/s Quality Needles Pvt. Ltd. and the complaint was filed after expiry of two years of the purchase of the vehicle, which is out of warranty and has covered 33,000 kms successfully. The car was purchased for the commercial purposes and not for personal use; therefore, the complainant is not a consumer. So far as the defects are concerned, as pointed out in para 3 (I to xxiii) in the complainant, the same were removed and rectified to the satisfaction of the complainant and even spare parts were replaced. Therefore, the complainant is not entitled to claim any relief.
6. The complainant has filed the rejoinder denying the fresh allegations of the OP in their written statement.
7. Both the parties have filled evidence by way of affidavit in their support.
8. We have heard Ld. Counsel of both the parties and perused the material on record.
9. At the outset, Counsel for the OP very vehemently submitted that the vehicle in question was purchased in the name of M/s Quality Needles Pvt. Ltd. and is it used for commercial purposes, therefore, the complainant is not a consumer within the ambit and scope of the Section 2(1)(d) of the Consumer Protection Act, 1986, therefore, the complaint is not maintainable. On the other hand, it is argued by the Counsel for the complainant that the car in question is not used or purchased for profit making activities and it is used by the one of the Director for personal use.
10. This controversy has been decided by this Commission in Anant Raj Agencies vs. Tata Engineering Locomotive Co. and another I (96) CPJ page 268 after referring various judgments of the Honble National Commission and the Supreme Court and it has been held National Commission laid down the following test in order to decide whether goods can be said to have been purchased for commercial purposes:
(i) Goods must have been purchased for being used for some profit making activities engaged in on a large scale.
(ii) There should be close and direct nexus between the purchase of the goods and the profit making activities.
It was held in that case that the car in question has not been purchased for being used in some profit making activities engaged in on a large scale. It has been purchased for the personal use of the Director of the Company, therefore was no nexus between the purchaser of the car and profit making activity carried on by the company.
11. In the case in hand applying the aforesaid law laid down on the basis of the various decisions of the National Commission and the Supreme Court. The OP has utterly failed to show that there is direct nexus between the purchase of the goods and the profit making activity and at no stage of the proceedings, it has been pointed out that the car in question was being used for profit making activity. The car in question was purchased for the personal use of the one of the Director of the Company, therefore, we do not agree with the contention of the Ld. Counsel for the OP in this respect.
12. At the outset, the Counsel for the OP has advanced a submission that there is no expert report filed by the complainant to show that the car in question is having manufacturing defect, therefore, complainant is not entitled to claim any relief. It is true that there is no expert report to show that there was a manufacturing defect and neither the complainant nor the OP moved an application to this effect that the car in question may be examined by expert. If there is no expert report, it does not mean that the car in question is not having manufacturing defect. It has been held by Honble National Commission in Bajaj Auto Ltd. vs. Kirit Kumar Jagjivan Das Patel III (2005) CPJ 86 (NC) that if no affidavit has been filed by the OP denying manufacturing defect by the expert, it does not mean that the vehicle in question was not having any manufacturing defect. It has also been observed by the Honble National Commission in Scooters India Ltd & anr. vs Madhabananda Mohanty & Ors II (2005) CPJ 136(NC) that it is not always necessary for the consumer to give expert testimony though if he does so, it will add to the weight of the evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of the defect. In view of the law laid down in the aforesaid cases, it is not necessary to file the expert evidence in order to come to conclusion whether the vehicle in question having the manufacturing defect. In this case the averment made by the complainant is that the vehicle in question is having the manufacturing defect and some of the defects are 26 in number and referred in para No.3 of the complaint. All these defects have been admitted by the OPs in their written statement but the contention raised by the Counsel for the OP is that all these defects have been removed or rectified whenever the car is brought to the service station of the OP, and if there is any need, the spare parts were also changed. The net result is that during the period of about 2 years, the vehicle in question which was purchased by the complainant for Rs.22,98,375/-, after spending the huge amount, was taken to this service station 33 times. The complainant has also filed history records, which are paper No.9,10,11,12 & 13 which goes to show that there were many defects and some of them were manufacturing in as much as the spare parts were changed and from the receipt filed by the complainant it is crystal clear that the complainant had to incur an expenditure to the tune of Rs.1,65,274/- for getting it repairs.
All these facts are not disputed to any of the party.
13. The Counsel for the complainant has referred a decision of Nonble National Commission in Nachiketa P Shirgaonkar vs. Pandit Automotive Ltd. & anr III (2008) CPJ 308 (NC). The para No.15 of the aforesaid judgment is quoted below In todays world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the customers by issuing advertisements in the print and electronic media making huge claims about the capacity and quality of their vehicles.
Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the Consumer Forum in the written submission filed by OP1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. There is a clear case of res ispa loquitur i.e. facts speak themselves hence there is no need to refer the vehicle to a third party for giving an opinion.
14. It may be pointed out here that the Counsel for the OP has not sited any law, which is contradictory to the above law referred by us.
15. It is, therefore, clear that the vehicle, which was purchased in April, 2005 and has covered 16000 Kms., was taken 33 times to the Service Station within two years having the defects, of course some of them are manufacturing, for which the parts were replaced by the OP and the complainant had to incur an expenditure of Rs.1,65,000/-.
16. In para No.4 of the complaint, it is admitted by the complainant that the vehicle covered 33,000 Kms.. The complaint was filed in June, 2008, i.e. after 3 years from the purchase. The vehicle was purchased for Rs.22,98,375/-. It is the settled principle of law that the value of the vehicle should be reduced by its depreciation by taking into consideration 10% thereof. The depreciated value in June, 2008 when the complaint was filed comes to Rs.17,67,000/- for which the complainant is entitled for refund of the vehicle.
17. The complainant has also claimed a compensation of Rs.50 lakh for mental agony, harassment and sheer suffering. Needless to mention that the complainant has paid Rs.22,98,375/- for the purchase of the vehicle in order to enjoy its fruit in the journey but during the period of two years, it was taken to the service station 33 times. Taking into consideration, the entire facts and circumstances of the case, we quantify the amount of compensation for mental agony, harassment and sheer suffering Rs.2,50,000/- including litigation charges. For the remaining amount the complainant has not filed any papers, therefore, we declined the same.
18. Under these circumstances we hereby direct
i) The OP jointly and severely refund Rs.17,67,000/- as the price of the vehicle to the complainant &
ii) Rs.2,50,000/-
as the amount of compensation for mental agony, harassment and sheer suffering inclusive of litigation charges.
iii) Vehicle in question shall be delivered by the complainant to the OP at the time of the receiving the aforesaid amount.
19. If this amount is not paid within 30 days, the OP shall pay interest @ 9% p.a. till its realization on the entire amount.
Salma Noor) Presiding Member (V.K.Gupta) Member(Judicial) Arya